N.Y. Family Court Act § 1027: Hearing and preliminary orders after filing of petition

§ 1027. Hearing and preliminary orders after filing of petition. (a)

(i) In any case where the child has been removed without court order or

where there has been a hearing pursuant to section one thousand

twenty-two of this part at which the respondent was not present, or was

not represented by counsel and did not waive his or her right to

counsel, the family court shall hold a hearing. Such hearing shall be

held no later than the next court day after the filing of a petition to

determine whether the child's interests require protection, including

whether the child should be returned to the parent or other person

legally responsible, pending a final order of disposition and shall

continue on successive court days, if necessary, until a decision is

made by the court.

(ii) In any such case where the child has been removed, any person

originating a proceeding under this article shall, or the attorney for

the child may apply for, or the court on its own motion may order, a

hearing at any time after the petition is filed to determine whether the

child's interests require protection pending a final order of

disposition. Such hearing must be scheduled for no later than the next

court day after the application for such hearing has been made.

(iii) In any case under this article in which a child has not been

removed from his or her parent or other person legally responsible for

his or her care, any person originating a proceeding under this article

or the attorney for the child may apply for, or the court on its own

motion may order, a hearing at any time after the petition is filed to

determine whether the child's interests require protection, including

whether the child should be removed from his or her parent or other

person legally responsible, pending a final order of disposition. Such

hearing must be scheduled for no later than the next court day after the

application for such hearing has been made.

(iv) Notice of a hearing shall be provided pursuant to section one

thousand twenty-three of this part.

(b) (i) Upon such hearing, if the court finds that removal is

necessary to avoid imminent risk to the child's life or health, it shall

remove or continue the removal of the child. If the court makes such a

determination that removal is necessary, the court shall immediately

inquire as to the status of any efforts made by the local social

services district to locate relatives of the child, including any

non-respondent parent and all of the child's grandparents, as required

pursuant to section one thousand seventeen of this article. The court

shall also inquire as to whether the child, if over the age of five, has

identified any relatives who play or have played a significant positive

role in his or her life and whether any respondent parent or any

non-respondent parent has identified any suitable relatives. Such

inquiry shall include whether any relative who has been located has

expressed an interest in becoming a foster parent for the child or in

seeking custody or care of the child. Upon completion of such inquiry,

the court shall remand or place the child:

(A) with the local commissioner of social services and the court may

direct such commissioner to have the child reside with a relative or

other suitable person who has indicated a desire to become a foster

parent for the child and further direct such commissioner, pursuant to

regulations of the office of children and family services, to commence

an investigation of the home of such relative or other suitable person

within twenty-four hours and thereafter expedite approval or

certification of such relative or other suitable person, if qualified,

as a foster parent. If such home is found to be unqualified for approval

or certification, the local commissioner shall report such fact to the

court forthwith so that the court may make a placement determination

that is in the best interests of the child;

(B) to a place approved for such purpose by the social services

district; or

(C) with a relative or suitable person other than the respondent.

(ii) Such order shall state the court's findings which support the

necessity of such removal, whether the respondent was present at the

hearing and, if not, what notice the respondent was given of the

hearing, and, where a pre-petition removal has occurred, whether such

removal took place pursuant to section one thousand twenty-one, one

thousand twenty-two or one thousand twenty-four of this part. If the

parent or other person legally responsible for the child's care is

physically present at the time the child is removed, and has not

previously been served with the summons and petition, the summons and

petition shall be served upon such parent or person coincident with such

removal. If such parent or person is not physically present at the time

the child is removed, service of the summons and petition shall be

governed by section one thousand thirty-six of this article. In

determining whether removal or continuing the removal of a child is

necessary to avoid imminent risk to the child's life or health, the

court shall consider and determine in its order whether continuation in

the child's home would be contrary to the best interests of the child

and where appropriate, whether reasonable efforts were made prior to the

date of the hearing held under subdivision (a) of this section to

prevent or eliminate the need for removal of the child from the home

and, if the child was removed from his or her home prior to the date of

the hearing held under subdivision (a) of this section, where

appropriate, that reasonable efforts were made to make it possible for

the child to safely return home.

(iii) If the court determines that reasonable efforts to prevent or

eliminate the need for removal of the child from the home were not made

but that the lack of such efforts was appropriate under the

circumstances, the court order shall include such a finding.

(iv) If the court determines that reasonable efforts to prevent or

eliminate the need for removal of the child from the home were not made

but that such efforts were appropriate under the circumstances, the

court shall order the child protective agency to provide or arrange for

the provision of appropriate services or assistance to the child and the

child's family pursuant to section one thousand fifteen-a or as

enumerated in subdivision (c) of section one thousand twenty-two of this

article, notwithstanding the fact that a petition has been filed.

(v) The court shall also consider and determine whether imminent risk

to the child would be eliminated by the issuance of a temporary order of

protection, pursuant to section one thousand twenty-nine of this part,

directing the removal of a person or persons from the child's residence.

(c) Upon such hearing, the court may, for good cause shown, issue a

preliminary order of protection which may contain any of the provisions

authorized on the making of an order of protection under section one

thousand fifty-six of this act.

(d) Upon such hearing, the court may, for good cause shown, release

the child to his or her parent or other person legally responsible for

his or her care, pending a final order of disposition, in accord with

subparagraph (ii) of paragraph (a) of subdivision two of section one

thousand seventeen of this article.

(e) Upon such hearing, the court may authorize a physician or hospital

to provide medical or surgical procedures if such procedures are

necessary to safeguard the child's life or health.

(f) If the court grants or denies a preliminary order requested

pursuant to this section, it shall state the grounds for such decision.

(g) In all cases involving abuse the court shall order, and in all

cases involving neglect the court may order, an examination of the child

pursuant to section two hundred fifty-one of this act or by a physician

appointed or designated for the purpose by the court. As part of such

examination, the physician shall arrange to have colored photographs

taken as soon as practical of the areas of trauma visible on such child

and may, if indicated, arrange to have a radiological examination

performed on the child. The physician, on the completion of such

examination, shall forward the results thereof together with the color

photographs to the court ordering such examination. The court may

dispense with such examination in those cases which were commenced on

the basis of a physical examination by a physician. Unless colored

photographs have already been taken or unless there are no areas of

visible trauma, the court shall arrange to have colored photographs

taken even if the examination is dispensed with.

(h) At the conclusion of a hearing where it has been determined that a

child should be removed from his or her parent or other person legally

responsible, the court shall set a date certain for an initial

permanency hearing pursuant to paragraph two of subdivision (a) of

section one thousand eighty-nine of this act. The date certain shall be

included in the written order issued pursuant to subdivision (b) of this

section and shall set forth the date certain scheduled for the

permanency hearing. A copy of such order shall be provided to the parent

or other person legally responsible for the child's care.